Opinion
04-CV-0459E(F).
July 23, 2004
DECISION AND ORDER INTRODUCTION
Plaintiff Muhammad Ali has filed this pro se action seeking relief under 42 U.S.C. §§ 1983 and 1985, the Freedom of Information Act, 5 U.S.C. § 552, the Administrative Procedures Act, 5 U.S.C. § 701, and the federal criminal statute for kidnaping, 18 U.S.C. § 1201 (Docket No. 1), and has requested permission to proceed in forma pauperis (Docket No. 2). Plaintiff claims that the defendant, John Pryzbyl, a case worker for the County of Erie Department of Social Services, refused to provide him a copy of a "false statement" made against him in order to have plaintiff removed from his apartment or "falsely arrested," so that he could not continue to prosecute an earlier filed civil action in this Court ( Ali v. Timmons, et al., No. 04-CV-0164E(F)). For the reasons discussed below, plaintiff's request to proceed as a poor person is granted and the complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
DISCUSSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), plaintiff is granted permission to proceed in forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if, at any time, the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.In evaluating the complaint, the Court must accept as true all factual allegations and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Dismissal is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Based on its evaluation of the complaint, the Court finds that plaintiff's claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because they fail to state a claim upon which relief may be granted.
A. Plaintiff's Allegations
Plaintiff's complaint alleges that John Przybyl, a case worker for the Erie County Department of Social Services, failed to provide him a copy of a "false statement" made against him so that plaintiff could be removed from his apartment or "falsely arrested" and, thereby, prevented from prosecuting a previously-filed civil action relating to what he claims was the theft or conversion of his rent monies and a discriminatory denial of his application for Home Energy Assistance Payments. Plaintiff does not allege that he has been falsely arrested or removed by defendant Przybyl and this Court construes the complaint as alleging that Przybyl has failed to provide him a copy of some false statement that may or may not have been used to have him removed from his apartment.
To the extent plaintiff claims a violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and any other act or federal law related to Mr. Pryzbyl's alleged failure to provide him a copy of some statement, the complaint must be dismissed with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B), because it fails to state a claim upon which relief can be granted. FOIA does not apply to state or local agencies or state or local individuals. See, e.g., St. Michaels Convalescent Hosp. v. California, 643 F.2d 1369, 1372-74 (9th Cir. 1981) (FOIA does not apply to state agencies which receive federal funding and regulation); Martinson v. Violent Drug Traffickers Project, 1996 WL 411590 at *2 (D.D.C. 1996) (FOIA does not apply to a state Attorney Generals' office); Mamarella v. County of Westchester, 898 F.Supp. 236, 237-238 (S.D.N.Y. 1995) (neither FOIA nor the Privacy Act apply to state or local agencies or individuals). As the defendant is an employee of the Erie County Department of Social Services, the federal FOIA claim against him is hereby dismissed, as are any other claims — viz., the claims under 42 U.S.C. §§ 1983 and 1985, and the Administrative Procedures Act, 5 U.S.C. § 701 — which may be raised in the complaint relating to the defendant's alleged refusal to turn over the statement. Accordingly, the complaint is dismissed in its entirety, pursuant to 28 U.S.C. § 1915(e)(2)(B), and to the extent that the defendant has already been served with the summons and complaint in this matter he may ignore it and he need not answer or respond to it.
To the extent that plaintiff claims that the defendant has violated the federal criminal statute relating to kidnaping, 18 U.S.C. § 1201, it is also dismissed because there is no private right of action under said statute, Giano v. Martino, 673 F.Supp. 92, 95 (E.D.N.Y.), aff'd 853 F.2d 1429 (2d Cir. 1987) (Table), and because a private individual has no constitutional right nor standing to file criminal charges against another individual. See Leeke v. Timmerman, 454 U.S. 83 (1981); Linda R.S. v. Richard D., 410 U.S. 614 (1973); Younger v. Harris, 401 U.S. 37, 42 (1971).
On June 28, 2004, the Court inadvertently granted (Docket No. 5) plaintiff's application for service of the summons and complaint by the U.S. Marshal prior to the time the Court had screened the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court will, therefore, direct the Clerk of the Court to send, via first class mail, a copy of this Order to the defendant advising him that the complaint has been dismissed.
CONCLUSION
Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a). Accordingly, his request to proceed in forma pauperis is granted and, for the reasons discussed above, the complaint is dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
ORDER
IT HEREBY IS ORDERED, that plaintiff's request to proceed in forma pauperis is granted;FURTHER, that the complaint is dismissed with prejudice;
FURTHER, that the Clerk of the Court shall serve a copy of the complaint and this Order upon defendant John Przybyl, Caseworker, Adult and Specialized Services, County of Erie Department of Social Services, 1500 Broadway, Buffalo, New York 14212, and Mr. Przybyl is hereby advised that the complaint has been dismissed against him and that if he has been or is, in the future, served with a summons and complaint in this matter, he need not answer the complaint or respond to it any way, unless for some reason he is later directed to do so by the Court; and
FURTHER, that leave to appeal to the Court of Appeals as a poor person is denied.
SO ORDERED.